NEC Mass Tort Lawyers

Did your child wind up developing necrotizing enterocolitis (NEC) from being fed Similac or Enfamil? If so, you have grounds for a personal injury lawsuit and may be entitled to recover medical costs and other damages.  Current complaints against infant formula makers Abbot Laboratories and Mead Johnson & Company allege these companies were aware of risks associated with their products and failed to warn consumers.

Many pediatricians recommend that babies born prematurely or underweight be fed such infant formulas in order to help their undeveloped bodies grow properly. Defendants in NEC litigation had a legal duty to ensure the safety and efficacy of their products. Plaintiffs claiming they failed in that duty must now deal with the illnesses or loss of their children.

What is NEC?

Necrotizing enterocolitis is a potentially fatal condition that primarily affects premature infants or those with low birth weight.  This is a form of inflammation affecting the intestinal lining that can lead to perforations or holes.  Bacteria then is able to leak into the abdominal cavity, causing serious infection (peritonitis). In the most serious cases, organ failure and death result.

Who is at Risk for NEC?

Babies most likely to contract NEC:

  • are born before the 37th week of gestation
  • weigh 5-1/2 lbs.  or less
  • have been fed through a tube into the stomach

NEC is a common affliction among premature infants, affecting approximately one in 1,000. Babies carried to full term rarely suffer from NEC. However, those born with a congenital heart condition or intestines outside of the body (gastroschisis) and who have low oxygen levels at birth are at elevated risk for NEC.NEC is fatal in about one-quarter of all cases. Those who survive may suffer from short bowel syndrome, bowel obstruction and anemia.  They may also face developmental delays.

What are the Symptoms of NEC?

NEC usually appears approximately two to six weeks after birth. It can develop quite rapidly, even in an infant that seems to be healthy and thriving. Signs to be aware of:

  • abdominal pain and swelling
  • elevated heart rate and blood pressure
  • fever
  • bloody diarrhea
  • vomiting bile
  • loss of appetite

Are There Treatments for NEC?

If the condition is diagnosed quickly, NEC can be treated with bowel rest. This procedure involves the use of an intravenous feeding tube until the intestines can recover. If intestinal tissue has already died and there is perforation, emergency resection is necessary.

The recovery rate for infants who have suffered from NEC is between 70 and 80 percent. Those who undergo surgery may still have long-term complications, however.

Can NEC be Prevented?

Expectant mothers at risk for premature birth can reduce the risk of NEC by taking corticosteroid shots, which can protect fetal health.  Once the child is born, breastfeeding and probiotic supplements can reduce the chances of NEC. It’s worth noting that studies from the late 1980s found that babies fed formula made from cow’s milk were up to 20 times more likely to develop NEC than those who were exclusively breastfed.

Have Other Baby Formulas Been Implicated in NEC?

Only Abbot and Mead Johnson have been targeted in NEC litigation so far. However, about 80 percent of all infant formulas are made from cow’s milk. If you do feed your infant formula, it’s important to check the ingredients. Specific Similac varieties named in complaints are:

  • Concentrated Liquid
  • Alimentum Expert Care
  • Human Milk Fortifier
  • Human Milk Fortifier Hydrolyzed
  • Liquid Protein Fortifier
  • NeoSure
  • Special Care 20
  • Special Care 24
  • Special Care 24 High Protein
  • Special Care 30

Enfamil products in question are:

  • 24 Cal Infant Formula
  • EnfaCare Infant Formula
  • Premature Infant Formula 20 Cal with Iron
  • Premature Infant Formula 24 Cal High Protein
  • Premature Infant Formula 24 Cal with Iron
  • Premature Infant Formula 30 Cal with Iron
  • Enfamil Human Milk Fortifier

If you have purchased these products or have reason to believe they were fed to your infant while under hospital care, you should contact a product liability attorney at the earliest opportunity.

Have There Been Recalls?

Neither Similac, Enfamil, or any other baby formula containing bovine milk has been subject to recalls. The current litigation is limited to the use of these formulas for feeding premature and underweight infants.  An Abbot facility in Michigan was ordered closed by the US Food and Drug Administration over concerns of bacterial contamination, but this is unrelated to the current lawsuits.

How is Mass Litigation Different From a Class Action?

Class action and mass litigation both involve a large number of plaintiffs who claim the same defendant has injured them. However, that is where the similarity ends.  The primary difference is that a class action is a single lawsuit with multiple plaintiffs, whereas mass litigation consists of multiple lawsuits. Plaintiffs in a class action have a single, specific cause of action. Typically, a single individual or small group of people file the lawsuit and represent everyone else who has suffered the same injury.  A famous class action was Anderson v. Pacific Gas & Electric Co., a case that was dramatized in the 2000 film Erin Brockovich.

In mass litigation, plaintiffs bring their individual lawsuits, which are consolidated before a federal judge who is appointed to hear the cases. A recent example of a mass tort action was that against include Bayer, the corporate successor to Monsanto. Plaintiffs claimed that their herbicide Roundup had caused their illnesses.

In mass litigation, a few cases are selected to go to trial. These are known as “bellwether” cases; the purpose is to predict which way the other cases are likely to be decided. If the plaintiffs prevail most of the time, the defendant will be pressured to settle with the remaining plaintiffs.

What is Happening With NEC Litigation?

The first lawsuit against Abbot Laboratories was filed in Connecticut in November of 2021 by parents whose baby girl died two days after being born. Named defendants included Abbot, Mead Johnson, and the hospital. The plaintiffs alleged the formula their daughter had been given resulted in her death. In April of 2022,  the Judicial Panel on Multidistrict Litigation issued an order transferring NEC cases to the Northern District of Illinois, where both defendants maintain headquarters.

Currently, approximately four dozen NEC lawsuits are pending. the most recent of which was filed in Washington state.

Why Did These Companies Market an Unsafe Product?

It should be pointed out that none of the lawsuits currently pending against Abbot and Mead-Johnson claim that baby formulas are inherently unsafe. Hundreds of thousands of infants consume these formulas daily with no ill effects. What these plaintiffs do claim is that the defendants knew that bovine milk-based products posed special risks to premature and underweight newborns. Instead of putting a warning label on the package and making doctors and their patients aware of the dangers, these companies continued to market their products to parents of premature infants, claiming they were somehow superior to a mother’s breast milk.

How Much Can I Recover From an NEC Lawsuit?

It is important to understand that NEC litigation is just getting underway. None of the cases have yet reached settlements or gone to trial, so at this point, it is impossible to know with any certainty which way the litigation will go, what verdicts will come back, or the kind of settlements that may be reached. With this said, the amount of damages you can recover will depend upon:

  • the seriousness of the injury
  • medical expenses and any financial losses
  • pain and suffering
  • emotional distress

It bears mentioning that the latter two fall into the category of “non-economic damages,” which can be difficult to determine.  Some states have a formula for determining this, while others place caps on such damages. You will need to speak with a product liability attorney to learn more about damages you may be able to recover.

When do I Need to File My Lawsuit?

The short answer is as soon as possible. This usually means you should file your complaint as soon as you have become aware of the problem.

Civil lawsuits have a statute of limitations, which is the time period within which you must file your complaint or forfeit your right to do so. Generally, this is two years from the cause of action, but this can vary from one jurisdiction to another. In New Jersey, the statute of limitations is two years, but several factors can change this. For example, there is a “discovery rule” which starts the clock only when the injury is discovered, even if it is weeks or months after the incident that caused it.  So if your child was injured or killed by a formula but this is not determined until three weeks later, the statute of limitations would start on that date.

This is one reason you should consult with an experienced product liability attorney. Most injury law firms accept cases on a contingency basis, meaning that if they do not win your case, you pay nothing. To prepare for your case evaluation, be sure you have as much evidence as possible, including hospital records.